If The Employer Does Not Rehire The Employee Following The Outcome Of The Reinstatement Case, How Much Compensation For Failure To Rehire Must The Employer Pay The Employee?
Supreme Court of Appeals of the Republic of Turkey
9th Civil Chamber
Case No.: 2016/36192
Decision No.: 2018/998
Date of Decision: January 23, 2018
REINSTATEMENT CASE – THE PLAINTIFF HAD WORKED FOR OVER FIVE YEARS – TERMINATION BY THE EMPLOYER NOT BASED ON VALID REASONS – COMPENSATION FOR FAILURE TO REINSTATE THE EMPLOYEE, BASED ON THE EMPLOYEE’S SENIORITY AND THE REASON FOR TERMINATION, TO BE DETERMINED AT THE RATE OF THE PLAINTIFF’S FIVE MONTHS’ SALARY
SUMMARY: Since it was understood that the plaintiff had worked for a total of more than 5 years, that the employment contract was terminated due to poor performance, and that the termination by the employer was not based on a valid reason, it is appropriate to decide that the termination is invalid and that the plaintiff should be reinstated. However, it is not correct for the court to determine the compensation for failure to reinstate the plaintiff employee based on the plaintiff’s seniority and the reason for termination as equivalent to the plaintiff’s 4 months’ salary. It would be appropriate for this compensation to be determined based on the plaintiff’s 5 months’ salary in accordance with the case file.
(Law No. 4857, Article 21) (Law No. 2821, Article 31) (9th Civil Chamber, 08.04.2008, 2007/27773 E., 2008/7819 K.)
Case: The plaintiff requested a ruling on the invalidity of the termination, reinstatement to work, and legal consequences.
The local court ruled in favor of the plaintiff.
The case was appealed by the parties’ attorneys within the time limit for judgment. After hearing the report prepared by the Review Judge for the case file, the file was examined, and the necessary discussions and deliberations were made:
SUPREME COURT DECISION
A) Summary of the Plaintiff’s Claim:
In the petition, the plaintiff’s attorney summarized that the plaintiff worked as an employee at the defendant company, that the employment contract was terminated invalidly and unjustly, and requested a decision for 4 months’ salary for the period of unemployment and 8 gross monthly salaries as compensation for not being reinstated.
B) Summary of the Defendant’s Response:
In the response, the defendant’s attorney argued that the termination of the plaintiff’s employment contract was based on valid and justified grounds and requested that the claim be dismissed.
C) Summary of the Local Court’s Decision:
In evaluating the evidence gathered and the entire case file, the court found that the plaintiff had been working for the defendant under an indefinite employment contract for more than six months, that the number of employees working for the defendant exceeded thirty, and that, based on the date of termination of the employment contract, the lawsuit was filed within the thirty-day period, the plaintiff was not the employer’s representative managing the entire workplace, and the defendant employer’s termination of the employment contract and dismissal of the plaintiff employee was not in accordance with labor law regulations, dismissal procedures and processes, the principle of equal treatment among employees, and the principle that termination should be a last resort. Therefore, the plaintiff’s claim was accepted, and it was decided to award the plaintiff four months’ salary for the period of unemployment and compensation for not being reinstated to work, based on his seniority (more than six months).
D) Appeal:
Both the plaintiff and the defendant appealed the decision.
E) Grounds:
The plaintiff employee, stating that the employment contract was terminated by the defendant employer without valid reason, requested a decision on the invalidity of the termination and reinstatement to work.
The court ruled on the invalidity of the termination and the reinstatement of the plaintiff employee to work, while the compensation for non-reinstatement was determined to be four months’ salary for the plaintiff employee.
Pursuant to Article 21 of Labor Law No. 4857, when the court rules that the termination is invalid, if the employer does not reinstate the employee within one month upon the employee’s request, compensation in the amount of at least 4 and at most 8 months’ salary must be determined to be paid to the employee. In accordance with our Chamber’s established practice, this compensation, which constitutes job security, must be determined by taking into account factors such as the employee’s seniority and the reason for termination. The lower and upper limits of the article cannot be exceeded. The only exception to exceeding the upper limit is termination for union-related reasons under Article 31 of the Trade Unions Law No. 2821. This article states that in the case of dismissal for union-related reasons, the compensation for non-employment shall be determined as at least one year’s salary of the employee. This is the practice of our Chamber. (Our ruling dated 08.04.2008 and numbered 2007/27773 Case, 2008/7819 Decision).
Taking into account the seniority periods in Article 53 regarding annual paid leave, our Chamber
4 months’ salary for employees with 6 months to 5 years of seniority,
5 months’ salary for employees with 5 to 15 years of seniority,
6 months’ salary for employees with more than 15 years of seniority. Depending on the reason for termination, the maximum limit for these amounts may be up to 8 months.
According to the file contents, in the specific dispute, the plaintiff employee started working at the defendant’s workplace under an indefinite-term employment contract dated October 6, 2010, between the plaintiff employee and ……, and as of July 1, 2012, the defendant employer ……. purchased the company where the plaintiff employee was working, …… purchased the business where the plaintiff employee was working, resulting in the transfer of the employment contract on July 1, 2012. Therefore, it is understood that the plaintiff worked for a total of more than 5 years between October 6, 2010, and September 10.2015, totaling more than 5 years, and that the employment contract was terminated due to poor performance. Since the termination by the employer was not based on valid grounds, it is appropriate to rule that the termination is invalid and that the plaintiff be reinstated. However, it is not considered correct for the court to determine the compensation for not reinstating the plaintiff employee based on his seniority and the reason for termination as equivalent to 4 months’ salary. It would be appropriate for this compensation to be determined as equivalent to 5 months’ salary based on the case file.
Pursuant to Article 20/3 of Labor Law No. 4857, our Chamber has decided as follows.
Ruling: Based on the above reasons;
The court’s decision is REVERSED AND SET ASIDE,
The TERMINATION IS DECLARED INVALID and the plaintiff IS REINSTATED,
If the defendant employer fails to reinstate the plaintiff within the statutory period despite the plaintiff’s application within that period, the amount of compensation to be paid shall be DETERMINED at the plaintiff’s 5-month gross salary, taking into account the plaintiff’s seniority and the reason for termination,
If the plaintiff employee applies to the employer within the specified period for reinstatement, it is NECESSARY to collect from the defendant the wages and other rights to which the plaintiff is entitled until the decision becomes final, for a maximum period of 4 months,
Since the fee has been paid in advance, there is no need to collect it again,
The plaintiff’s litigation costs of TL 274.50 shall be collected from the defendant and paid to the plaintiff, and the defendant’s litigation costs shall be borne by the defendant.
The attorney’s fee of 2,180.00 TL, determined according to the tariff in force on the date of the decision, shall be collected from the defendant and paid to the plaintiff.
The advance appeal fee shall be refunded to the relevant party upon request.
The decision was unanimously rendered on January 23, 2018.